Court File and Parties

COURT FILE NO.: CR-22-8690 DATE: 2024/09/11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Randall Hillier

Counsel: The Crown, Emma Loignon-Giroux Randall Hillier, Self-Represented Amicus Curiae, Brett McGarry

HEARD: September 3-5, 2024

REASONS FOR DECISION ON VOLUNTARINESS AND PRIOR DISCREDITABLE CONDUCT APPLICATIONS

Parfett J.

[1] The Crown seeks a ruling on the voluntariness of a statement given to police by Mr. Hillier on March 28, 2022. In addition, the Crown seeks to enter at trial evidence of other protests that occurred in 2021 and in which Mr. Hillier was involved.

Background

[2] Mr. Hillier is charged with public mischief, counselling the commission of an offence, assault peace officer, and obstruct peace officer.

[3] In 2022, Mr. Hillier was an independent member of the Ontario Provincial Legislature. Between January 22 and February 23, 2022, the downtown core of Ottawa was the scene of a protest known as the Freedom Convoy. Mr. Hillier is alleged to have participated in and assisted with the organization of this protest.

Voluntariness of Statement

[4] On March 27, 2022, Mr. Hillier was advised by the investigating officer, Det. Geller, that he would be charged with criminal offences arising out of his participation in the Freedom Convoy. Det. Geller asked Mr. Hillier to turn himself in at the police station and told him that he would be interviewed. Mr. Hillier agreed to come to the station the next day and indicated that he would call his lawyer in the meantime.

[5] Mr. Hillier was met at the police station by Cst. Kyle Dodgson who arrested Mr. Hillier. Mr. Hillier was advised of the offences, read his rights to counsel and cautions, and was searched. Cst. Dodgson took Mr. Hillier to the interview room and left him with Det. Geller.

[6] Cst. Dodgson’s only other contact with Mr. Hillier was to escort him to the cellblock. Mr. Hillier spoke to his lawyer after the interview.

[7] At the outset of the interview, Det. Geller confirmed that Mr. Hillier was aware of his charges, had spoken to his lawyer, and that he did not want to speak with his lawyer again at that time. Det. Geller also reviewed the cautions with Mr. Hillier.

[8] The interview was approximately four hours long. At Mr. Hillier’s request, there was one health break taken during the interview.

[9] Both officers testified that during the times when they were with Mr. Hillier off-camera, there was no substantive discussion. They also confirmed that there were no promises, threats, or inducements offered to Mr. Hillier to encourage him to speak to them.

[10] The atmosphere throughout the interview was cordial and relaxed. Det. Geller and Mr. Hillier engaged in both philosophical and political debates. Mr. Hillier was fully engaged in the discussion, very articulate, and more than capable of holding his own in the back and forth that occurred with Det. Geller. At times, they were both laughing. It was clear that Mr. Hillier was very comfortable with the process.

[11] The Crown has the burden of demonstrating beyond a reasonable doubt that the statement was voluntary. In the seminal case of R v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada set out four factors that are relevant to the voluntariness inquiry. They are:

• Threats or promises;
• Oppression;
• An operating mind; and
• Police trickery.

[12] In the present case, the officers’ testimony was that they did not offer Mr. Hillier any inducements, whether in the form of promises, threats, or otherwise. This testimony is supported by the video.

[13] The video demonstrates that Mr. Hillier had an operating mind and that there was no evidence of police trickery in any form. Det. Geller spent considerable time developing a rapport with Mr. Hillier, but that conduct fell far short of anything that could be described as police trickery.

[14] Mr. Hillier did not argue that the police engaged in any conduct that undermined his free will or that reached the level of oppression. He was offered water and was given a bathroom break when requested.

[15] In my view, the Crown has met its burden. The statement is voluntary and will be admitted in evidence.

Prior Discreditable Conduct

[16] The Crown seeks to admit evidence of five rallies that occurred across the province between April 8 and May 1, 2021 which promoted an end to the lockdowns happening at the time. Mr. Hillier was present at or spoke at them all. The rallies were large events with several hundred participants. They were held outdoors with no social distancing or masking, contrary to the regulations under the Reopening Ontario (A Flexible Response to COVID-19) Act, S.O. 2020, c. 17. Mr. Hillier was charged in relation to each of the rallies with having breached the regulations under this Act.

[17] In two cases, the charges have been stayed. Other than the fact that one matter was diverted prior to being stayed, there is no evidence concerning the reason for the stays. In two other matters, the charges are the subject of a constitutional challenge in the Ontario Court of Appeal.

[18] All parties agree on the legal principles applicable in this case. The starting point for the analysis is that evidence in relation to the accused’s conduct that is discreditable but not part of the charged conduct is inadmissible.

[19] As a result, such evidence may only be admitted if it is material to a specific issue at trial and if its probative value outweighs its prejudicial effect.

[20] In the seminal case of R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the Supreme Court of Canada set out the framework for analysing the admissibility of proposed prior discreditable conduct. First, the court identifies the specific issue to which the proposed evidence is said to relate. Second, the court assesses the probative value of the evidence. Third, the court determines what, if any, prejudicial effect the proposed evidence may have, and weighs that effect against the probative value. The proposed evidence should only be admitted if it is relevant and material to a specific issue at trial and the probative value outweighs the prejudicial effect.

[21] In R v. L.B. (1997), 35 O.R. (3d) 35 (C.A.), the Court of Appeal for Ontario set out a list of non-exhaustive factors to be considered in determining admissibility. The court stated the following:

In assessing the probative value of the proposed evidence, consideration should be given to such matters as: (i) the strength of the evidence; (ii) the extent to which the proposed evidence supports the inference(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and (iii) the extent to which the matters it tends to prove are at issue in the proceedings.

In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as: (i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused’s ability to respond to it.

[22] Mr. Hillier opposes the admission of this evidence on the basis that it is more prejudicial than probative and that there is significant risk of reasoning prejudice given the matters are unproven at this time. Mr. Hillier points out that he would be required not only to defend himself against the criminal charges but also against the regulatory charges, turning the trial into effectively six trials.

[23] Amicus argued that the incidents at the five rallies are significantly different both factually and legally than the criminal charges. He noted that the five incidents were peaceful, short protests that were only illegal because they breached provincial regulations aimed at slowing the spread of COVID-19 and protecting the healthcare system. The rallies did not involve any criminal mischief, assault, or obstruction. These rallies occurred in the spring of 2021 and restrictions on gatherings and masking had been significantly eased by the time of the criminal matters in January and February 2022. Consequently, Amicus argued that the degree of connectedness between the rallies and the criminal charges is substantially attenuated.

[24] Amicus also raised the same concerns as Mr. Hillier that there was a substantial risk of reasoning prejudice in that the evidence could present the following issues:

• Require side trials into the five incidents, involving Crown and Defence witnesses and legal submissions concerning the legality of the conduct. All of this has the potential to significantly lengthen the trial;
• Confuse or distract the jury with the accuracy or the legality of the alleged prior discreditable conduct;
• Overwhelm Mr. Hillier with the necessity of defending himself against these incidents as well as the criminal charges;
• Present a danger that ‘the jury might mix up matters of consideration (the similar acts) with matters of decision (the charge).

[25] The theory of the Crown is that the Freedom Convoy may have started as a legitimate protest, but it was ultimately declared illegal. Consequently, those persons who continued to occupy downtown Ottawa were engaging in criminal mischief by interfering with the lawful enjoyment of individuals’ property. According to the Crown, Mr. Hillier was an active participant in the now illegal protest. Alternatively, it is their theory that he aided and abetted the participants.

[26] The Crown states that the proposed evidence relates to three specific issues at trial, including the following: intent (mens rea), party liability, and narrative. The Crown argues that the evidence of the rallies demonstrates a pattern of behaviour in which Mr. Hillier defied authority and encouraged others to defy the regulations. The evidence also indicates that Mr. Hillier had a significant following in Ontario such that his statements on social media in relation to calling the police and encouraging people to keep coming to Ottawa and join the Freedom Convoy would have had a much greater impact than comments from a less public figure.

[27] The Crown argues that the evidence would not unduly lengthen the trial as only a couple of witnesses would be required to enter the videos into evidence. The Crown also notes that the legality of the regulations is not an issue. According to the Crown, any argument or finding that the regulations were not valid would not change the fact that the regulations were valid at the time of the events.

[28] In the present case, the key issues in determining whether this evidence should be admitted is, first, whether it is relevant to a live issue at trial, and second, whether the probative value outweighs its prejudicial effect.

[29] The Crown has identified the issues to which it believes the evidence relates as intent, party liability, and narrative. Of these three issues, narrative requires the most precision in defining the link between the proposed evidence and charged conduct. The Crown suggests that it needs to prove how Mr. Hillier came to know about and get involved with the Freedom Convoy. I do not see how this information advances the Crown’s case. The evidence in relation to the charged conduct demonstrates that Mr. Hillier was involved in the Freedom Convoy. The how and why of that involvement is not relevant.

[30] Intent is always an issue at trial, but its importance varies greatly from case to case. In the present case, the offences are all general intent offences. As such, a minimal level of knowledge is required. The fact that Mr. Hillier was involved in prior protests does not make it more likely that Mr. Hillier was something more than just a bystander in the Freedom Convoy. On the other hand, the fact that Mr. Hillier was a member of the provincial legislature at the time and, by his own admission, a public and often controversial figure, does make it more likely that he was more than a mere bystander.

[31] Finally, in my view the proposed evidence does inform the issue of party liability. Mr. Hillier has downplayed the level of his involvement in the Freedom Convoy. His position is that he merely encouraged and assisted other participants but that he was not an organizer. The proposed evidence demonstrates that he was an ardent opponent of the lockdown, one of the founding members of a group known as “No more lockdowns Canada”, and both an organizer and primary speaker at the rallies. This evidence would tend to make it more likely that he was involved in the Freedom Convoy to a greater degree than he is prepared to admit.

[32] Therefore, the evidence does have probative value.

[33] The next issue is the prejudicial effect of the evidence. The Crown has indicated strongly that it is not relying on the content of Mr. Hillier’s speeches nor his political views as part of its case. It is only interested in the fact of the rallies and the breach of provincial regulations. The Crown argues that this diminishes any potential prejudicial effect, particularly given the breaches are of provincial regulations and are not criminal in nature.

[34] However, the jury will hear Mr. Hillier’s speeches and some may be offended by the views he espouses. Worse, at one of the rallies, Mr. Hillier is standing in front of a banner with a picture of Adolph Hitler with the phrase “Stand against the great reset”, which is allegedly a reference used by certain fringe political movements. In other videos, participants are yelling at the police and calling them Nazis. Mr. Hillier is not engaging in that behaviour, but he is present. In short, the videos have the potential to be highly inflammatory.

[35] While a limiting instruction is always given to the jury when prior discreditable conduct evidence is admitted, in my view it would be difficult for a jury to separate Mr. Hillier’s views from his conduct.

[36] In addition, I agree with both Mr. Hillier and Amicus that the fact that these matters are outstanding could cause the trial to turn into several trials resulting in confusion and distraction to the jury. I also agree with Mr. Hillier that having to deal with this evidence as well as the evidence of criminal charges would be overwhelming.

[37] Finally, two of the charges have been stayed. It is unclear what the basis for the stays was. Although it is sometimes acceptable to proffer evidence of prior discreditable conduct that is the subject of a stay, it is not always acceptable. In the absence of any evidence that the stays in these cases do not relate to the Crown’s ability to prove their case, in my view, it would be unwise to admit this evidence.

[38] Consequently, I find that the probative value of the proposed discreditable evidence is outweighed by its prejudicial effect and the application is dismissed.

Released: September 11, 2024 Parfett J.